In an interview on MSNBC’s “Morning Joe” program. Sen. Joe Manchin (D-WV) lamented that the due process of law, which is guaranteed by the Constitution, is among the "big problems" preventing Congress from passing legislation that would forbid the purchase of firearms by suspected terrorists. Manchin went on to say that the Fifth Amendment is thus "killing us right now."
Manchin said “The problem we have, and really the firewall we have right now, is due process. It's all due process." He added, "We can all say we want the same thing, but how do we get there?"
Gun control proponents, among whom are Hillary Clinton, want to pass legislation that would prohibit the purchase of firearms by people who are on the federal government’s secretive terrorist watch list. The database, sometimes known as the ‘no-fly’ list, was established during the George W. Bush administration in 2003. Champions of civil liberties say the list violates the Fifth Amendment, which requires "due process of law." A central tenet of American civil rights and jurisprudence, the Fifth Amendment also guarantees that no one can be held to answer for a crime "unless on a presentment or indictment of a grand jury."
Proponents of gun control are also calling for the establishment of secret courts where government requests for prohibiting gun purchases by certain people would be approved. They point out that precedent of secret proceedings that permit the arrest of foreign nationals suspected of terrorism.
Manchin spoke about Omar Mateen, the U.S. citizen Muslim who in the name of the Islamic State shot and killed 49 people on June 12 at a nightclub in Florida. Mateen, he said, was a terrorist who managed to escape detection and thus legally purchased a firearm. The 29-year-old Mateen, who was born in the United States, had also passed background checks to become a security guard. He had, however, come under FBI scrutiny for several months over two years because of his stated intentions of committing violence. During the attack, Mateen was armed with a handgun and a Sig Sauer MCX rifle, which fires a 5.56 NATO round. His weapon of choice was not an AR-15, as has been variously repeated.
"[The FBI] did everything they could. The FBI did everything they were supposed to do, but there was no way for them to keep him on the nix list, or keep him off the gun buy list," Manchin said. "There was no way to do that. So can't we say that if a person is under suspicion, there should be a five-year period of time that we have to see if good behavior, if this person continues the same traits, maybe we can come to that type of agreement." He added, "But due process is what's killing us right now."
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